Glenn Spencer Glenn Spencer
Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce


February 13, 2017


The Trump administration’s nominee for Secretary of Labor, Andrew Puzder, will have his confirmation hearing this week, and the union-backed front group Fight for $15 is holding protests today against his nomination. Their action is just the latest in a barrage of opposition by the Service Employees International Union (SEIU) and its allies against Mr. Puzder. However, while he is the object of their ire, behind the scenes what they seem to be most upset about is their impending loss of influence in the Department of Labor (DOL) and the National Labor Relations Board (NLRB), both of which have been stacked with union-friendly activists for the last eight years.

Indeed, under the Obama administration, both the DOL and the NLRB tilted policies heavily in favor of organized labor, and one particular example of that fact is the otherwise obscure “joint employer” standard. As this blog has written extensively, this issue has been the cause célèbre for a labor movement at its lowest point in 80 years.

This issue crept up about five years ago, when the SEIU created the Fight for $15 and began a series of raucous protests at fast food restaurants. The objective of these protests ostensibly was a minimum wage of $15 per hour and union representation in the fast food industry, starting with well-known brands like McDonald’s. The difficulty — with the latter part at least — was that organizing individual restaurants had always been difficult and time-consuming for a variety of reasons, not the least of which being that franchisors and franchisees have long been recognized as separate businesses.

Thus, unions like the SEIU urged the NLRB to abolish its traditional joint employer standard in order to facilitate unionization. The rationale seemed to be that if large corporate franchisors could be made a joint employer, then a successful organizing campaign at a single franchise could force it to the bargaining table. Once there, the SEIU could then attempt to negotiate national card check and/or neutrality agreements covering all franchisees, which subsequently could be quickly picked off.

On cue, the Obama NLRB rewrote the joint employer standard in its 2015 Browning Ferris decision, and it has appeared poised to apply it in a pending case against McDonald’s. Armed with the new standard, the SEIU hoped to gain untold thousands of new members and potentially hundreds of millions of dollars in dues, assuming their gambit was successful.

Since November, however, the landscape for unions has dramatically shifted, to say the least. With the Trump administration underway, the SEIU has begun to realize that it will not have allies working within government to tailor policies to their advantage.

And, in the case of Mr. Puzder, he has been openly critical of the onerous and ill-considered policies of the Obama administration such as the revised joint employer standard. That obviously does not sit well with the SEIU, which poured tens of millions of dollars into its fast food pressure campaign with little to show for it. All of the rhetoric and street theater notwithstanding, what seems to really bother them is that their influence within the halls of government is about to disappear.

About the authors

Glenn Spencer

Glenn Spencer

Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.

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